The Nebraska Law Review

The Legislative Role in Procedural Rulemaking through Incremental Reform

Briana Lynn Rosenbaum, Associate Professor of Law, University of Tennessee College of Law

"Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incrementally change the substantive law through procedural change and litigation reform."

Legal Education: A New Growth Vision Part I—The Issue: Sustainable Growth or Dead Cat Bounce? A Strategic Inflection Point Analysis

Hilary G. Escajeda, Adjunct Professor of Tax Law, University of Denver Sturm College of Law

"Legal education programs now face strategic inflection points. To survive and thrive long-term, education programs must embrace entrepreneurship, technology, innovation, platforms, and customer service as the means by which to navigate through strategic inflection points. Imagination, adaptability, agility, determination, and speed will separate market leaders from laggards."

Unreported Sexual Assault

Saul Levmore and Martha C. Nussbaum, Professors of Law, University of Chicago Law School

"Unreported criminal behavior is troubling for a variety of reasons, including the likelihood that it reduces the law’s ability to deter wrongdoing. This Article examine[s] the possibility of encouraging reports with rewards and penalties and explain[s] why rewards are superior to penalties."

“Essentially Black”: Legal Theory and the Morality of Conscious Racial Identity

Kenneth B. Nunn, University of Florida Levin College of Law

"In this Article, I examine the anti-essentialism critique that has developed in Critical Race and LatCrit legal theory. I argue that the anti-essentialism critique offered by critical theorists is misguided insofar as it claims that the assertion of a conscious racial identity is morally wrong."

Known Unknowns: Legislating for a Juvenile’ s Reformative Uncertainty

Tiffani N. Darden, Michigan State University College of Law

"Juvenile offenders are constitutionally different from their adult counterparts. . . . In this Article, I argue that when reviewing juvenile sentences in criminal courts, the Supreme Court’s Eighth Amendment analysis should treat the national consensus prong as subordinate to its own judgment based on social science, developmental psychology, and neuroscience research advancements."

Strict Liability and Negligence in Copyright Law: Fair Use as Regulation of Activity Levels

Apostolos G. Chronopoulos, Queen Mary University School of Law

"In this Article, I argue that the tort of copyright infringement constitutes a mixed system of liability, which resorts to both strict liability and negligence to achieve the utilitarian aim of promoting the progress of science and the useful arts, as instructed by the Intellectual Property Clause of the Constitution."

Endorsing Pedophiles for Elected Office?

David R. Katner, Tulane University Law School

This Article discusses "pedophilia, the dynamics of victims’ delay in reporting their victimization, various institutional protections afforded to accused child molesters, political sexual misconduct, current literature on the impact of child molestation, and the difficulties faced by victims of child molestation. . . ."

Everything, but Maybe Nothing: The Supreme Court’s Important—but Fragile—Decision in Trinity Lutheran Church of Columbia, Inc. v. Comer: 137 S. Ct. 2012 (2017)

John Lucas Rockenbach, University of Nebraska College of Law

This Note "argues the Supreme Court correctly held that Missouri’s policy violated the Free Exercise Clause but contends that one aspect of the Court’s reasoning . . . is unsound and should be abandoned . . . [and] describes how lower courts have reacted to Trinity Lutheran, questions the immediate impact of the case, and forecasts future Supreme Court action."

The Case for a Federal Cyber Insurance Program

David L. Vicevich, University of Nebraska College of Law

"After considering U.S. policy, the nature of the threat, the failed public and private law responses, and the limitations of the private cyber insurance market, the discussion herein moves to consider a national cyber insurance program. . . . Finally, this Comment briefly considers the possible benefits and detriments of a national cyber insurance program generally."

Resolution Triggers for Systemically Important Financial Institutions

John Crawford, Professor of Law, University of California, Hastings College of the Law

"One of the central themes of post-crisis reforms has been tackling the too-big-to-fail problem by trying to ensure that systemically important financial institutions (SIFIs) can fail while neither sparking a broader panic nor requiring taxpayers to cover losses for the SIFIs’ creditors. Solving this problem is vital, . . ."

The Duty to Refrain: A Theory of State Accomplice Liability for Grave Crimes

Rachel López, Associate Professor, Thomas R. Kline School of Law, Drexel University

"In the modern era, as the cooperation between States in military and counter-terrorism efforts increases, so does the risk that a State will facilitate the grave crimes of another State through its political, military, or economic assistance. . . . This raises the question: What legal obligations do States have to refrain from assisting other States in committing grave international crimes?"

Green Fees: The Challenge of Pricing Externalities under State Law

Erin Adele Scharff, Associate Professor, Sandra Day O’Connor College of Law, Arizona State University

"This Article takes a critical look at current state law governing the distinction between user fees and taxes. This Article then argues that Pigovian levies do not fit neatly into either legal category under the definitions in place in most states. As a result, this Article proposes reforms to state user fee definitions that would bring needed clarity to user fee doctrine."